IO Files: US/S/500 or US/A/C.1/689
Memorandum by the Deputy United States Representative on the Security Council (Jessup) to the United States Representative at the United Nations (Austin)
In considering the problems which may arise in the Security Council, particularly if Chapter 71 action seems to be indicated as the Palestine [Page 908] situation develops, I believe that certain basic legal points are in need of clarification. Our position book on Palestine under Tab 4 c. includes a memorandum on the legal status of Palestine.2 This opinion was written before some aspects of the problem developed and does not seem to me to give conclusive answers at this time.
The basic question is the status of Palestine after May 15. Under this head perhaps the first question is our position concerning the right of the United Kingdom to terminate the Mandate in the absence of previous agreement with the United Nations. In the position paper at page 13, it is said: “If the General Assembly should repeal its recommendation [of November 29]3 before May 15, 1948, Great Britain would be obligated to continue the Mandate until another solution could be found and carried out”. It is not clear to me whether we intend to hold the United Kingdom to this view in case the resolution of November 29 is merely suspended, or in case it is negatived by the force of events without formal General Assembly action for repeal or suspension.
If we take the position that the Mandate is not terminated on May 15, we must assert that the United Kingdom continues to have full responsibility and that the question of Jewish armed activities or the entry of the armies of the Arab states is primarily a problem for Great Britain. Such military activities could be considered by Great Britain as a revolt against its authority, or, if countenanced or invited by Great Britain, they might be considered legalized.
Another possible position in line with a general previous view of the United States would be that the Mandate is terminated as of May 15, and that the United States, France, and the United Kingdom succeed the Mandate as the principal allied and associated powers. If we take this view, we would share jointly with the other two powers the responsibility for law and order in Palestine and the military activities of Jews and Arabs would involve the question of the authorization of acquiescence of the three powers.
Under either of the above hypotheses there would be no legally delimited Jewish state or Arab state and the movement of armed forces in any area in Palestine could be considered a question of civil rebellion against the constituted authority (namely the United Kingdom, or the United Kingdom jointly with France and the United States). It seems clear that in considering the “invasion” of Arab armies, under either of the above hypotheses, it would not be the Jewish Agency which could raise the question, but only the single or triple legal authority.
A third possible hypothesis would be that the United Kingdom can legally terminate the Mandate, and that the United States and France [Page 909] by renunciation or acquiescence surrender their rights as principal allied and associated powers. In general, the discussions in the First Committee have proceeded along these lines and have reached the conclusion that the resulting situation would be a vacuum. It is on this basis that it has been argued that the United Nations must assume the authority as of May 15. If the United Nations is the legal authority in Palestine on May 15, then any anticipated military action would be action against the United Nations itself.
A fourth possible hypothesis, which I believe the United States is not prepared to accept, is that by virtue of the November 29 resolution it would be legally permissible for the Jews and the Arabs to proclaim their states in that area.
Involved in the above situations is the question of the recognition of a proclaimed Jewish state or of a proclaimed Palestinian state. If we are prepared to take the position that either the United Kingdom or the principal allied and associated powers constitute the legal authority in Palestine as of May 15, it would be a violation of international law for other states to recognize these newly proclaimed states until the lawful authorities had clearly reached the point of being unable any longer to assert their authority over them, in other words, until they had actually achieved their independence by force of arms without any prospect that the lawful authorities could reassert their authority.
If we follow the theory that a legal vacuum is created on May 15 and if Jewish and Palestinian states are proclaimed, even before these proclaimed states are recognized they might give color of legal authority to any outside forces which came in at their request.
So far as the instructions which we have received are concerned, I do not find that we have clear answers to these problems. I think it may be difficult to map a consistent course of action in the Security Council until our position on these points is clear. In a recent conversation with Mr. Parodi, I gathered that he, as President of the Security Council, is also worried about the answers to these problems.